Arizona weekly enterprise., 1887-12-03

proceedings. The plaintiffs, by counsel, objected to the admission of said map. The court, however, overruled the ob- jection, and admitted the same We think this was error. What jurisdiction or authority military officer had to ex- ercise judicial functions, (outside of mili- tary affairs, or to author e others to do
 ), and to adjudicate upon and settle the rights of citizens to the use of this water, and to order an official map made, cir cumscriblng the limits of these water privileges, Is more than we have been able to ascertain. Major Ferguson had been appointed governor of Tucson by General Carleton. The latter had no authority to confer, and he did not con fer, judicial authority upon his subordi- nate to sit in judgment upon and deter mine the civil rights of citizen, or to authorize others,F not otherwise capaci- tated, so to do. There was no military necessity that these martial-law proceed ings should be had, and this map be made, divesting and vestlng the civil rights of the citizen. Martial law may enforce order, but has no jurisdicton over property rights
 These proceedings, according to the | answer, were all had prior to the New Fields" Defendants are bound by that answer. Therefore we are unable to see any rele, ency this map has in this case, or on what ground it could be competent to establish the fact for which it was offered.
 Again, we think theS defendants are barred by the statute of limitations of this territory, and by prescription, and that the court below erred in not finding True, the complaint may have been ob- noxious to criticism in this respect: the statute could have been pleaded more specifically; but the Complaint ayers ''that each of which said tracts of land has been owned, possessed, occupied, and cultiva- ted continually by plaintiffs or their pre- decessors in title for period of not less than sixteen years" and ''that during all the time herein mentioned the said tracts of land have teen Irrigated by the waters i of the Santa Cruz river, taken from said river by one main acequia, and distribut- ed by several aceaulas which were constructed and kept in repair ill com mon, and for the com mon use of all the people," No objection was raised in the trial below to this pleading. The an- swer of defendants specially denied each of these averments, except as to the time said lands had been cultivated; and the evidence largely concerned the length of time of plaintiffs use; so that this issue was undoubtedly joined, and was the i important question in this litigation. | Criticism will not be made, or objections raised, to pleading for the first time in an appellate court See Grams V. Hun | ter, 28 N. Y. 395; White V. Railroad Co. , 4l7; Hutchings V. Castle, AS Cal. 155; K ing V. Davis, 34 Cal. 100. With refer ence to the rights acquired in the use of water, estopped in pais, and title by limi- tation and prescription, are very similar; and reasoning upon one will inevitably impinge upon that of the others, es- pecially in case like this. Indeed, title of limitation, and title by prescription, to real estate, are practically synony- nous. This issue was raised then, and the court below failed to make finding either of law or fact upon it, which was manifest error. But the court did not make finding, both of law and fact, upon an issue that was certainly not raised by either complaint or answer; viz: 'That the occupants of said gardens, | Chinese gardens which have had the continual use and enjoyment of said water for the irrigation thereof for more than five years continuously next before the commencement of this action, and claiming said right adversely to all others, are entitled to the continued use of so much water, upon Saturdays and Sun days, as may be necessary for the proper irrigation thereof" The court then pro- ceeds to find that much of this Chinese garden has been so occupied for from six to fifteen years; and then proceeds to decide, in its opinion, that the defend ants have acquired the right to the addi- tional water necessary to irrigate these Chinese gardens, comprising probably, 150 acres, by adverse user and prescrip- ton. There was no such issue ln the case as this; the defendants did not raise 1t in their answer; and even the evidence that crept into the case on this point certainly was insufficient to justify the finding and decision. Neither side hac invoked judicial acton on this question We are of opinion, therefore, that thi: much of the finding and decision, botl of law and fact of the learned judge below was error; 1t was coram non judice These Chinese gardens, and the specula tive inclinations of the owners, may have been the source of much trouble between the parties herein; and yet neither tht pleadings nor evidence disclose 1t; tht information is obtainable only in saic finding and opinion.
 The evidence shows that plaintiffs hay, always imed an equal right to the us, of the water of the Santa Cruz river; anC while, as we have already observed, tn, evidence also shows that defendants hat the prior right, yet the plaintiffs, auc those nder whom they claimed, not onll claimed all equal right, but they had th' use of said waters without prevention b, defendant until just before the commence
 nent of this suit Most of the defen dants' testimony, aside from mass o testimony as to damages, was as to thu prior right, and not as to the prior use of sad water. Galiardo, an old gentle
 man, 72 years old, testified that he a
 one time had owned most of the 'tOlt
 Fields above. At that time water wa common, and he told the settlers of til, ''New Fields, that he would not stol them; that the government protected agriculture; that they were children 0 the town and his neighbors. Juan Elias
 another old citizen testified that th